What is surrogacy?
Surrogacy is an arrangement where a woman (“the surrogate mother”) agrees to become pregnant and give birth to a child or children on behalf of others who are or will ultimately become the parents of the new born child or children.
Surrogacy is an increasingly popular way for people to either start or extend their families. There are two different types of surrogacy:
- Straight or traditional surrogacy (also known as “Total Surrogacy”)
This is where the surrogate mother’s eggs are used, so she is biologically related to the child or children
- Host or gestational surrogacy (also known as “Partial Surrogacy”)
This is where the surrogate mother is not biologically related to the child, and either the eggs of the intended mother or an egg donor are used.
The surrogate will always be the mother of the child at birth. This cannot be altered by either an agreement or pre-birth court orders. The surrogate will remain the child’s mother until such time as parenthood is re-assigned by either a parental order or by adoption.
Surrogacy Agreements in the UK
A surrogacy agreement is a document that sets out the arrangements for the surrogacy. In England and Wales however, there is no legal requirement to have an agreement in place and it should be noted that a surrogacy agreement is not actually legally binding in the UK.
However, in the event of dispute, it can be helpful to have one in place as the parties can use the document to show the intention and understanding of everyone involved.
Due to strict limitations, English law does not allow legal practitioners to draft surrogacy agreements. This is not the case in all countries and in some it is common for lawyers to be involved in the drafting of the surrogacy agreement, especially where they are legally binding.
International Surrogacy & Legal Parenthood
Different countries assign parenthood in different ways – this in itself can bring difficulties and it will depend on how laws local to the arrangement interact with those in England.
It is possible, that if a child is born through international surrogacy, they can still be subject to a parental order in England and Wales.
It is vital you obtain legal advice. Our expert surrogacy team here at IMD are used to working with clinics abroad around the issue of surrogacy and can provide you with the very best guidance.
In order to become legal parents, you must apply to the Court for a parental order within 6 months of the child’s birth (there are some exemptions). There are some conditions:
- You must be related to the child.
- You can be married, civil partners or living as partners
- Before 3rd January in order to obtain a Parental Order for your child born through surrogacy, there needed to be two applicants (two intended parents).Finally this has changed and the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 (the “Remedial Order”) now permits single applicants. In the interim this left many without necessary legal recourse and their genetic links could not be legally acknowledged by way of a Parental Order.
- This change means that you can apply for a Parental Order, as a single applicant, as long as you have a genetic link to your child. Your relationship is not key here. This is a welcome relief for single parents who have had children though surrogacy
- Have the child living with you.
- Be resident permanently in either the UK, Channel Islands or Isle of Man.
Get in touch with our multi-cultural family law team today to discuss your surrogacy needs and options.
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